from the really-now? dept

This is hardly a surprise, but similar to the Joel Tenenbaum case, Jammie Thomas-Rasset (the other person sued for copyright infringement for using a file sharing system), has lost again. The appeals court (8th Circuit) has ruled that $9,250 per song infringed is perfectly reasonable and that the judge in the case, Michael Davis, erred in calling for a new trial after the initial jury verdict (the first of three). There were a number of procedural issues here, and it's worth pointing out that Thomas-Rasset herself more or less asked the court to bring back this first verdict and focus on the Constitutionality of the damages amount. So, the whole mess with the three separate district court trials sort of gets swept under the rug. However, the court simply isn't buying Thomas-Rasset's claim that the statutory damages are unconstitutionally punitive and a violation of due process. Basically, it says that the fact that statutory damages are completely out of whack with actual damages doesn't matter, because the point of statutory damages is that they're disconnected from actual damages on purpose (because, in theory, they're put in place because actual damages are difficult to assess).

Given that, the court then takes the statutory range (basically $750 to $150,000 -- upper limit is $30,000 if not willful) and basically says, "well, $9,250 is at the low end of the range, so it's fine."

We conclude that an award of $9,250 per each
of twenty-four works is not “so severe and oppressive as to be wholly disproportioned
to the offense and obviously unreasonable.” .... Congress, exercising its
“wide latitude of discretion,”... set a statutory damages range for willful
copyright infringement of $750 to $150,000 per infringed work....
The award here is toward the lower end of this broad range. As in Williams, “the
interests of the public, the numberless opportunities for committing the offense, and
the need for securing uniform adherence to [federal law]” support the
constitutionality of the award.

Because of this, it argues that crazy copyright statutory damages somehow automatically "motivate the creative activity."

Congress’s protection of copyrights is not a “special private benefit,” but is
meant to achieve an important public interest: “to motivate the creative activity of
authors and inventors by the provision of a special reward, and to allow the public
access to the products of their genius after the limited period of exclusive control has
expired.” ... With the rapid advancement of technology, copyright infringement through
online file-sharing has become a serious problem in the recording industry. Evidence at trial showed that revenues across the industry decreased by fifty percent between
1999 and 2006, a decline that the record companies attributed to piracy. This decline
in revenue caused a corresponding drop in industry jobs and a reduction in the
number of artists represented and albums released

The court then accepts as fact (a) these highly dubious claims that the record labels are in trouble and it's all due to copyright infringement online and (b) that such awards actually act as a deterrent. The truth is both of these statements are factually incorrect. The record labels are in trouble because they failed to adapt to a changing market. And awards of many thousands of dollars for infringing on a single song don't act as a deterrent at all. They just seem so far away from any sense of reality that they actually make people respect copyright even less.

I've long been a believer that the RIAA and the labels sued Tenenbaum and Thomas-Rasset for just a couple dozen songs, but then kept making the point that they were really sharing over a thousand to defend the ridiculously large awards. If that's the case, then they should have sued over all of the songs -- because you can't defend against that which you weren't sued over. In this appeal, Thomas-Rasset more or less tried to use a variation on that argument to prove the insanity of the $9,250 number, pointing out that if she had been sued over 1,000 songs, then she would have owed $9.25 million, which just seems obviously ridiculous. Unfortunately, the court makes a weird statement to avoid that logic:

The absolute amount of the award, not just the amount per violation, is
relevant to whether the award is “so severe and oppressive as to be wholly
disproportioned to the offense and obviously unreasonable.”

Is that really true, though? The court seems to be saying that it's only the total amount that matters, and not the amount per violation. But that makes no sense. Since the question is whether it's "disproportioned to the offense" then, um, the offense itself is important. Yet, here the court is arguing "24 songs or 1,000 songs, doesn't matter -- just the total amount matters."

The court also said that Judge Davis shouldn't have ordered a mistrial, as he did over faulty jury instructions in that original jury trial. The issue was over mistaken jury instructions, concerning whether or not "making available" is infringement. The RIAA was hoping that the court would also confirm their highly questionable theory that merely "making available" (i.e., putting something in a shared folder) is infringement itself, rather than the view of many that you have to show something that actually violates one of the rights under the Copyright Act (distribution, reproduction, etc.). Making available is not one of those rights, but the RIAA and copyright maximalists like to pretend it is, and they were hoping the court here would say it was. Instead, the court punts on the issue, saying that because it can handle the main issues at hand without having to deal with the making available question, they'll skip it, thank you very much:

But
because the verdicts returned by the second and third juries are sufficient to justify
these remedies, it is unnecessary for this court to consider the merits of the district
court’s order granting a new trial after the first verdict. Important though the “making
available” legal issue may be to the recording companies, they are not entitled to an
opinion on an issue of law that is unnecessary for the remedies sought or to a
freestanding decision on whether Thomas-Rasset violated the law by making
recordings available.

Thomas-Rasset's attorneys have made it clear they plan to appeal, though there's no guarantee that the case will go anywhere. It appears unlikely that there will be any sort of circuit split between this case and the Tenenbaum case, as both seem to be heading in similar directions (though somewhat different paths). And, as I've said before, both of these cases were the wrong ones to fight for a precedent on. In both cases, you have clear examples of "bad actors" -- who not only infringed, but knew they were infringing -- and who then took steps that make it easy to portray them as bad actors in court, whether it was trying to blame others or outright lying to the court. Both Thomas-Rasset and Tenenbaum should have settled their cases long ago. There are important Constitutional questions about statutory damages for copyright, but these two make bad cases and they're making it easy for the courts to put in place dangerous precedents that guarantee that copyright law gets no respect from the public, and that damages are wholly outside the realm of reasonable.